REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 328 OF 2004

Surinder Kumar .... Appellant(s)

Versus

State of Haryana .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1)This appeal is directed against the final judgment and

order dated 19.12.2003 passed by the High Court of Punjab

and Haryana at Chandigarh in Criminal Appeal No. 241-DBA

of 1993 whereby the High Court while reversing the judgment

dated 17.12.1992 passed by the Sessions Judge, Ambala

allowed the appeal filed by the State and convicted the

appellant herein under Section 302 of the Indian Penal Code,

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1860 (in short ‘IPC’) and sentenced him to undergo rigorous

imprisonment for life and to pay a fine of Rs.25,000/- and in

default of payment of fine, to further undergo rigorous

imprisonment for one year.

2) Brief facts:

(a)According to the prosecution, the accusation against the

appellant-accused was that he was on visiting terms to the

house of Inder Pal (PW-7), husband of Kamlesh Rani (since

deceased), who was working at Mullana and keeping his family

at Naraingarh, Dist. Ambala, Haryana. The appellant-accused

had been visiting Inder Pal’s house and developed illicit

relationship with his wife-Kamlesh Rani. Inder Pal (PW-7)

suspected the same between them and stopped his wife from

meeting the appellant-accused. When the appellant-accused

was stopped to visit their house, he had started threatening

and harassing Kamlesh Rani for which she made a complaint

to her husband. Inder Pal (PW-7) also visited the shop of the

appellant-accused and told him not to visit his house and

harass his wife.

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(b)On the intervening night of 25/26.06.1991, when Inder

Pal (PW-7) was away from his house, the appellant-accused

went to his house and taunted his wife that she had become a

woman of immoral character and called upon her to burn

herself to death if she had any sense of shame. Thereafter, the

appellant-accused picked up a kerosene can lying in the one

room apartment and after pouring the same on the deceased,

set her on fire. When the fire developed, the appellant-

accused ran away from the room after placing a quilt on the

deceased. The neighbours of the deceased took her to the Civil

Hospital, Naraingarh where she was examined by Dr. Ashwani

Kumar Kashyap, Medical Officer (PW-1). He immediately sent

intimation to In-charge Police Station, Naraingarh to the effect

that the deceased had been brought to the hospital with 100%

burns, and as the condition of the patient was critical she had

been referred to P.G.I., Chandigarh. At P.G.I. Chandigarh, she

was admitted in the Emergency Ward and Dr.Vipul Sood (PW-

9) examined her and reported a case of 95% burn injuries.

(c) On receiving the information, Dalip Rattan (PW-3), Sub-

Inspector, P.S. West, Chandigarh applied to the Sub-Divisional

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Magistrate, Chandigarh for appointment of an Executive

Magistrate to record the statement of Kamlesh Rani.

Consequently, Shri P.K. Sharma, Tehsildar-cum-Executive

Magistrate (PW-2) was deputed to record her statement. On

26.06.1991, PW-2 recorded her statement and a First

Information Report was registered being No. 86/1991 at P.S.

Naraingarh at 5.30 p.m. under Section 307 IPC. On the

intervening night of 28/29.06.1991, Kamlesh Rani succumbed

to the injuries and the case was converted into Section 302

IPC. Thereafter, Ram Niwas (PW-13), Sub Inspector, P.S.

Ambala, arrived at P.G.I., Chandigarh and prepared the

inquest report. Post mortem was conducted at General

Hospital, Sector 16, Chandigarh by Dr. V.K. Chopra and Dr.

Ajay Verma (PW-12) on 29.06.1991 at 4.45 p.m. On the same

day, the accused was arrested and the case was committed to

the Court of Sessions.

(d) The Sessions Judge, Ambala, after analyzing the

evidence and after giving the benefit of doubt, vide judgment

dated 17.12.1992 acquitted the appellant-accused.

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(e)Challenging the said judgment, the State of Haryana filed

an appeal bearing Criminal Appeal No. 241-DBA of 1993

before the Division Bench of the High Court. The High Court,

vide judgment dated 19.12.2003, reversed the judgment of the

Sessions Judge, Ambala and sentenced the appellant-accused

to rigorous imprisonment for life and imposed a fine of

Rs.25,000/- and in default of payment of fine, to further

undergo rigorous imprisonment for one year.

(f)Aggrieved by the said judgment, the appellant-accused

has filed this appeal before this Court.

3) Heard Mr. Sushil Kumar, learned senior counsel for the

appellant-accused and Mr. Manjit Singh, learned Additional

Advocate General for the respondent-State.

4)The trial Court based on the dying declaration Ex. PD

alleged to have been made by the deceased-Kamlesh Rani

before Shri P.K. Sharma (PW-2), Executive Magistrate,

Chandigarh and after finding that it does not inspire

confidence in the mind of the Court and being the only

evidence appearing against the accused, after giving the

benefit of doubt in his favour, acquitted from the charges

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levelled against him. On the other hand, the High Court

relying on the dying declaration holding that it is extremely

difficult to reject the dying declaration altogether and finding

that in the said dying declaration the deceased had positively

stated that she had been immolated by the accused/appellant,

set aside the order of acquittal passed by the trial Court and

found him guilty under Section 302 IPC and sentenced to

undergo rigorous imprisonment for life. In view of the same,

the only question for consideration in this appeal is whether

the dying declaration Ex. PD of Kamlesh Rani is reliable,

acceptable and based on which conviction is sustainable.

5)We have already referred to the accusation against the

accused that he was on visiting terms to the house of Inder

Pal-husband of the deceased who was keeping his family at

Naraingarh, however, working at Mullana. The accused

Surinder Kumar had been visiting the house of the deceased-

Kamlesh Rani during the absence of her husband Inder Pal.

Inder Pal suspected illicit relationship between Surinder

Kumar and his wife Kamlesh Rani. It is further seen that on

the date of occurrence, that is, on 26.06.1991, Kamlesh Rani

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went to the cinema in the company of four other ladies. On

the same evening, Surinder Kumar confronted her of having

loose character and called upon her to immolate herself to

death if she had any sense of shame. Thereafter, Surinder

Kumar picked up a kerosene can lying in the one-room

apartment and after pouring the same on Kamlesh Rani set

her on fire. When the fire developed, he ran away from the

room after placing a quilt on her person. On hearing her cries,

neighbours reached at the spot and carried her to the Civil

Hospital, Naraingarh and then she had been shifted to PGI

Hospital, Chandigarh where she made a dying declaration

statement before P.K. Sharma, (PW-2), Executive Magistrate

and thereafter on 28/29.06.1991, she succumbed to her

injuries.

6)Before considering the acceptability of dying declaration

(Ex.PD), it would be useful to refer the legal position.

(i)In Sham Shankar Kankaria vs. State of

Maharashtra, (2006) 13 SCC 165, this Court held as under:

“10. This is a case where the basis of conviction of the

accused is the dying declaration. The situation in which a

person is on deathbed is so solemn and serene when he is

dying that the grave position in which he is placed, is the

reason in law to accept veracity of his statement. It is for this

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reason the requirements of oath and cross-examination are

dispensed with. Besides, should the dying declaration be

excluded it will result in miscarriage of justice because the

victim being generally the only eyewitness in a serious crime,

the exclusion of the statement would leave the court without

a scrap of evidence.

11. Though a dying declaration is entitled to great

weight, it is worthwhile to note that the accused has no

power of cross-examination. Such a power is essential for

eliciting the truth as an obligation of oath could be. This is

the reason the court also insists that the dying declaration

should be of such a nature as to inspire full confidence of

the court in its correctness. The court has to be on guard

that the statement of deceased was not as a result of either

tutoring or prompting or a product of imagination. The court

must be further satisfied that the deceased was in a fit state

of mind after a clear opportunity to observe and identify the

assailant. Once the court is satisfied that the declaration

was true and voluntary, undoubtedly, it can base its

conviction without any further corroboration. It cannot be

laid down as an absolute rule of law that the dying

declaration cannot form the sole basis of conviction unless it

is corroborated. The rule requiring corroboration is merely a

rule of prudence. This Court has laid down in several

judgments the principles governing dying declaration, which

could be summed up as under as indicated in Paniben v.

State of Gujarat (1992) 2 SCC 474 (SCC pp.480 -81, para 18)

(Emphasis supplied)

(i) There is neither rule of law nor of prudence that

dying declaration cannot be acted upon without

corroboration. (See Munnu Raja v. State of M.P.,(1976) 3 SCC

104)

(ii) If the Court is satisfied that the dying declaration is

true and voluntary it can base conviction on it, without

corroboration. (See State of U.P. v. Ram Sagar Yadav, (1985)

1 SCC 552 and Ramawati Devi v. State of Bihar,(1983) 1 SCC

211)

(iii) The Court has to scrutinise the dying declaration

carefully and must ensure that the declaration is not the

result of tutoring, prompting or imagination. The deceased

had an opportunity to observe and identify the assailants

and was in a fit state to make the declaration. (See K.

Ramachandra Reddy v. Public Prosecutor,(1976) 3 SCC 618)

(iv) Where dying declaration is suspicious, it should

not be acted upon without corroborative evidence. (See

Rasheed Beg v. State of M.P.,(1974) 4 SCC 264 )

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(v) Where the deceased was unconscious and could

never make any dying declaration the evidence with regard

to it is to be rejected. (See Kake Singh v. State of M.P., 1981

Supp SCC 25)

(vi) A dying declaration which suffers from infirmity

cannot form the basis of conviction. (See Ram Manorath v.

State of U.P.,(1981) 2 SCC 654)

(vii) Merely because a dying declaration does contain

the details as to the occurrence, it is not to be rejected. (See

State of Maharashtra v. Krishnamurti Laxmipati Naidu,1980

Supp SCC 455)

(viii) Equally, merely because it is a brief statement, it

is not to be discarded. On the contrary, the shortness of the

statement itself guarantees truth. (See Surajdeo Ojha v.

State of Bihar,1980 Supp SCC 769.)

(ix) Normally the court in order to satisfy whether the

deceased was in a fit mental condition to make the dying

declaration look up to the medical opinion. But where the

eyewitness has said that the deceased was in a fit and

conscious state to make the dying declaration, the medical

opinion cannot prevail. (See Nanhau Ram v. State of

M.P.,1988 Supp SCC 152)

(x) Where the prosecution version differs from the

version as given in the dying declaration, the said

declaration cannot be acted upon. (See State of U.P. v.

Madan Mohan, (1989) 3 SCC 390)

(xi) Where there are more than one statement in the

nature of dying declaration, one first in point of time must be

preferred. Of course, if the plurality of dying declaration

could be held to be trustworthy and reliable, it has to be

accepted. (See Mohanlal Gangaram Gehani v. State of

Maharashtra,(1982) 1 SCC 700)”

(ii)In Puran Chand vs. State of Haryana , (2010) 6 SCC

566, this Court once again reiterated the abovementioned

principles.

(iii)In Panneerselvam vs. State of Tamil Nadu , (2008) 17

SCC 190, a Bench of three Judges of this Court reiterating

various principles mentioned above held that it cannot be laid

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down as an absolute rule of law that the dying declaration

cannot form the sole basis of the conviction unless it is

corroborated and the rule requiring corroboration is merely a

rule of prudence.

7)In the light of the above principles, the acceptability of

the alleged dying declaration in the instant case has to be

considered. If, after careful scrutiny, the Court is satisfied

that it is free from any effort to induce the deceased to make a

false statement and if it is coherent and consistent, there shall

be no legal impediment to make a basis of conviction, even if

there is no corroboration. With these principles, let us

consider the statement of Kamlesh Rani and its acceptability.

8)Kamlesh Rani was initially taken to the Civil Hospital,

Naraingarh at 2.20 a.m. on 26.06.1991 where she was initially

examined by Dr. Ashwani Kumar Kashyap (PW-1). The said

Medical Officer immediately sent intimation to In-charge P.S.

Naraingarh to the effect that Kamlesh Rani had been brought

to the hospital with 100% burns, the patient was critical and

had been referred to PGI, Chandigarh. Thereafter, at P.G.I.,

she was admitted in the Emergency ward and Dr. Vipul Sood

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(PW-9) examined her at 04:35 a.m. and reported a case of 95%

burns. It is further seen that on receiving information, Sub-

inspector Dalip Rattan (PW-3) applied to the Sub-Divisional

Magistrate, Chandigarh for appointment of Executive

Magistrate to record Kamlesh Rani’s statement. Based on the

same, Shri P.K. Sharma, Tahsildar-cum-Executive Magistrate

(PW-2) was deputed to record her statement. The Magistrate

who reached PGI applied to the Doctor In-charge to certify if

Kamlesh Rani was mentally and physically fit to make a

statement or not. The doctor certified at 07.25 a.m. that she

was fit to make a statement. Thereafter, Kamlesh Rani’s

statement was recorded which is marked as Ex. PD. It was

marked with thumb impression of Kamlesh Rani and signed

by the Magistrate at 7.45 a.m. It is relevant to note the said

dying declaration which reads thus:

“Yesterday, at about 10:00 o’clock four ladies came to my

house and asked me to accompany them to see a movie and

we all had gone to see the movie. One boy Subhash was also

seeing movie. He was sitting there on the back seat. After

seeing the movie, I came back to my house. Surinder Kumar

Garg who is a so-called brother (dharma Bhai) of my

husband came in the evening and asked me that I had gone

to see picture and stated that I had become a bad character.

My husband is doing service at Mullana and lives there. At

that time, he was at Mullana. Then Surinder said if I had

any sense of shame, I should die by burning myself. Then,

he took kerosene from a container (small peepi) and

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sprinkled it over me and set me on fire with a match stick.

When I was in flame, he put a quilt upon me and ran away.

My neighbour removed me to Naraingarh hospital and from

there I was referred to P.G.I., Chandigarh. I have made my

statement in full senses and without any pressure.”

As observed earlier, initially, the trial Court acquitted the

accused and the High Court convicted him solely on the basis

of the above declaration. In the light of the same, we have to

find out whether the dying declaration made and recorded is

acceptable and whether it satisfied the required

norms/procedure as held by this Court. In other words, we

have to see whether the dying declaration inspire the

confidence of the court. It is not in dispute that if the dying

declaration is by a person who is conscious and the same was

made and recorded after due certification by the doctor, it

cannot be ignored. In the first sentence of Ex. PD, it has been

mentioned that on the date of occurrence, she had gone for a

movie at 10.00 O’ clock with four other ladies. According to

her, these ladies came to her house and on their request she

also went to see the movie and returned back to her home.

Though I.O. has examined some persons, there is no

information about the “four ladies” who accompanied the

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deceased to the cinema house. The I.O. did not care to verify

those four ladies who accompanied the deceased to the cinema

house. In the same declaration, she also stated that apart

from the four ladies one boy Subhash was also seeing the

movie along with them. According to her, he was sitting there

on the back seat. The said Subhash was also not examined by

the I.O. Non-examination of four ladies, who accompanied the

deceased to the cinema house and no information about

Subhash gave an impression that the I.O. had not properly

conducted the investigation. If at least one of the ladies or

Subhash was examined, it would strengthen the prosecution

case. However, the I.O. purposely omitted to examine the

ladies who went for cinema and in the same manner no effort

was made to trace Subhash whom the deceased saw at the

movie. None of the so-called neighbours were produced at the

trial. The landlord of the deceased-Ram Rattan was not

examined at the trial. It was Ram Rattan who had driven the

van to take Kamlesh Rani from Civil Hospital, Naraingarh to

PGI, Chandigarh. It is to be noted that Kamlesh Rani’s sister’s

husband Surinder Pal informed Inder Pal-husband of the

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deceased about the incident. Inder Pal and Surinder Pal had

together gone to Chandigarh and later met Kamlesh Rani. For

the reasons best known to the I.O., the said Surinder Pal was

not examined on the side of the prosecution. In other words,

non-examination of any one of the ladies who accompanied

the deceased to cinema in the morning, presence of Subhash

and the landlord of the deceased, namely, Ram Rattan,

another tenant Jeet Singh were all vital to the prosecution. All

these were important omissions on the part of the I.O. When

Hira Lal (PW-11), Assistant Sub-Inspector was examined, he

fairly admitted that he had not obtained opinion of the Doctor

at that time about her fitness to make a statement. Another

doctor-PW-12, who conducted post mortem, had opined that

the cause of death is septicemia due to extensive burns

(approx. 97%) which is sufficient to cause death in ordinary

course of nature.

9)Ram Niwas (PW-13), Sub-inspector also admitted that he

did not make any effort to ascertain the women who had

accompanied Kamlesh Rani to see the movie. He also

admitted that he had not associated Subhash referred to in

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the dying declaration during investigation. He fairly admitted

that he had no knowledge about any person by name Surinder

Pal who happened to be sister’s husband of Kamlesh Rani who

was employed in Civil Hospital, Naraingarh. All the above

infirmities/defects have not been properly explained by the

prosecution.

10)Now coming to her state of mind, all the doctors have

mentioned that she was admitted with burn injuries to the

extent of 100% and after sometime she succumbed to the

injuries. It is true that P.K. Sharma (PW-2), Tahsildar-cum-

Executive Magistrate recorded her statement. In his evidence,

PW-2 has stated that on the orders of Shri Jagjit Puri, SDM,

Union Territory of Chandigarh, by his order Ex. PB/1 deputed

him to record the statement of Kamlesh Rani. Pursuant to the

said direction, he went to the PGI and moved an application to

seek the opinion of the doctor whether Kamlesh Rani was fit to

make a statement or not. He further deposed that when he

had contacted Kamlesh Rani she was present in the general

ward and some persons were also standing there, they left the

room on his direction. About the absence of the doctor

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certifying at the time and date when she made a statement, he

clarified that the doctor issuing such certificate was busy with

his professional work. Kamlesh Rani had made a statement in

local dialect of mixed Hindi/Punjabi and PW-2 had recorded

her statement in Hindi script. Here again, it was pointed out

that these were not factually correct. In view of the doubt, we

verified the original which is in Hindi script only and not local

dialect in mixed Hindi/Punjabi. Though, according to PW-2,

she put her thumb impression, in view of the evidence of the

doctors that she was brought to hospital with 100% burns and

at the time of recording her statement, she suffered 95-97%

burn injuries, it is highly doubtful whether it would be

possible for her to have her thumb impression below her

statement. It is also not clear that when the whole body is

burnt and bandaged how the thumb impression of the

deceased was obtained.

11)We have already noted that admittedly at the time of

recording the statement of the deceased by PW-2, no

endorsement of the doctor was made about her position to

make such statement. On the other hand, an application was

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filed by Hira Lal, (PW-11) to Doctor In-charge PGI, Chandigarh

seeking clarification “whether she is fit to make the statement

or not” and for the said query an endorsement was made by

the doctor mentioning that “patient conscious answering the

questions, patient fit to give statement”. We compared the

dying declaration Ex. PD recorded by PW-2 as well as the

endorsement made in the requisition of Hira Lal, ASI (PW-11).

The verification of both the documents show different doctors

have certified and made such a statement. Dr. Vipul Sood,

PW-9, PGI Chandigarh in his evidence has stated Kamlesh

Rani was admitted in the Emergency ward of PGI Hospital on

26.06.1991 at about 4.30 a.m. with 95% burns. He also

deposed that when Ex. C/1 was submitted by P.K. Sharma,

PW-2 on which he gave his opinion that the patient is fit to

make a statement on 26.06.1991 at about 7.25 a.m. It is clear

that at the time when PW-2 recorded the statement of the

deceased Dr. Vipul Sood (PW-9) was not present and

subsequently on the request of the police officer, he offered his

opinion to the effect that the patient was fit to make a

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statement. The procedure adopted by PW-2 while recording

the statement of dying declaration is not acceptable.

12)As per the prosecution, the incident took place at 2 a.m.

on 26.06.1991 and as per her statement, the occurrence of

burning was in the evening of 25.06.1991, that is, the

previous day. The dying declaration did not carry a certificate

by the Executive Magistrate to the effect that it was a

voluntary statement made by the deceased and that he had

read over the statement to her. The dying declaration was not

even attested by the doctor. As stated earlier, though the

Magistrate had stated that the statement had been made in

mixed dialect of Hindi and Punjabi and the statement was

recorded only in Hindi. Another important aspect is that there

was evidence that Kamlesh Rani was under the influence of

Fortwin and Pethidine injections and was not supposed to be

having normal alertness. In our view, the trial Court rightly

rejected the dying declaration altogether shrouded by

suspicious circumstances and contrary to the story of

prosecution and acquitted the appellant.

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13)It is settled that a valid and well reasoned judgment of

the trial Court is seldom set aside unless there was some

perversity or not based on correct law. From the materials

available, absolutely there was no case to presume that the

death of the deceased occurred at the hands of the appellant

especially, when her statement was shrouded by suspicious

circumstances and contrary to the claim of the prosecution.

Particularly, when she was alleged to have 97% burns and

being under constant sedatives first at Civil Hospital,

Naraingarh and then at PGI, Chandigarh, in such a situation

she could not be expected to make a statement at a stretch

without asking any questions. Admittedly, the Executive

Magistrate, PW-2 did not put any question and recorded her

answers.

14)Another important aspect relating to failure on the part of

prosecution is that on the date of the incident, the deceased

had two children aged about six and four years respectively

and both of them were present there, admittedly, the I.O. has

not enquired them about the genuineness of the incident.

Though, there are number of immediate neighbours/co-

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tenants in the same premises, their statements were not

recorded which means that nobody supported the version of

the prosecution. Though there is neither rule of law nor of

prudence that dying declaration cannot be acted upon without

corroboration but the court must be satisfied that the dying

declaration is true and voluntary and in that event, there is no

impediment in basing conviction on it, without corroboration.

It is the duty of the court to scrutinise the dying declaration

carefully and must ensure that the declaration is not the

result of tutoring, prompting or imagination. Where a dying

declaration is suspicious, it should not be acted upon without

corroborative evidence. Likewise, where the deceased was

unconscious and could never make any declaration the

evidence with regard to it is rejected. The dying declaration

which suffers from infirmity cannot form the basis of

conviction. All these principles have been fully adhered to by

the trial Court and rightly acquitted the accused and on wrong

assumption the High Court interfered with the order of

acquittal.

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15)It is the consistent stand of the defence from the

beginning that the appellant had been falsely implicated, more

particularly, at the instance of I.O. Hira Lal (PW-11) who had a

previous enmity with him for asking some bribe for running

his business of ghee. As rightly pointed out, other witnesses

who accompanied the injured Kamlesh Rani did not make any

statement involving the appellant in the burning of Kamlesh

Rani till 29.06.1991.

16)We are satisfied that the dying declaration was totally in

conflict with the version of the prosecution as to the time of

her burning, relation of the appellant with the deceased,

except for the implication part, which was clarified in favour of

the appellant by PW-10 Surinder Singh in his cross-

examination. In such circumstances, the dying declaration

was totally unacceptable, could not be believed as trustworthy,

which was rightly not believed so by the trial Court.

17)Inasmuch as the acquittal by the trial Court and

conviction by the High Court is solely based on the dying

declaration, in view of our above discussion, there is no need

to traverse the evidence and other factual details. In view of

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the infirmities pointed above, and contradictions as to the

occurrence, failure on the part of the Executive Magistrate in

obtaining certificate as to whether Kamlesh Rani had made a

voluntary statement and not attested by any doctor and also

his statement which is contradictory to that of the deceased

Kamlesh Rani and of the fact that at the relevant time she was

under the influence of Fortwin and Pethidine injections and

was not supposed to be having normal alertness, as rightly

observed by the trial Court, we hold that the dying declaration

Ex.PD does not inspire confidence in the mind of the Court.

Inasmuch as the dying declaration is the only piece of

evidence put forward against the accused in the light of our

discussion and reasoning, the accused - Surinder Kumar is

entitled to the benefit of doubt.

18)Consequently, the conviction and sentence ordered by

the High Court is set aside and the order of acquittal passed

by the trial Court is restored. Since the appellant is on bail,

his bail bonds shall stand discharged. The appeal is allowed.

...…………………………………J.

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(P. SATHASIVAM)

....…………………………………J.

(DR. B.S. CHAUHAN)

NEW DELHI;

OCTOBER 21, 2011

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